Can You Use an Electronic Will in California?

Can You Use an Electronic Will in California?

What Is an Electronic Will? 

Not long ago, all legal documents were printed on paper and signed with a pen. But every aspect of our world is being changed by rapidly evolving technology, including many legal documents and processes.

In today’s world, we do almost everything online. With a click of a button on your phone, you can order an Uber, groceries from Insta-Cart, or even a car from Carvana.

And with your phone or tablet, you can sign an apartment lease, do a mortgage application, purchase stocks, open a bank account, wire funds, and sign various commercial contracts.

So, when it comes to wills, it feels almost prehistoric for state laws to require someone to appear in person in front of witnesses to sign a will printed on paper, and have it notarized with a seal or rubber stamp.

And it seems inevitable that someday in the future all legal documents will be done electronically.

But in California and most other states, the day of the electronic will is not here - yet.

Will Requirements in Most States

Under most established state laws, a will is generally not valid unless it is in writing, signed by the willmaker (normally called the testator), and witnessed by two other people. There is a good reason for these rules. Courts need to be able to determine whether a will is authentic after the testator dies and comports to their wishes.

By requiring testators to follow these rules, courts can ensure that the willmaker had mental capacity when they signed the will, signed the voluntarily with no duress or threat and that the will reflects the testator’s wishes.

With the advent of the COVID-19 pandemic in early 2020, many jurisdictions began allowing electronic meetings instead of in-person hearings and allowing electronically signed documents instead of paper originals. And some states are now allowing electronic wills with electronic signatures.

But, although the future is rushing toward us, paper wills with in-person witnesses are still the norm in many states - including California.

What States Allow Electronic Wills?

Several states have begun adopting legislation that specifically permits electronic wills. 

Nevada was the first state to pass laws allowing the use of an electronic will. And in recent years, Indiana, Arizona, Florida, Illinois, and Maryland have enacted legislation to permit electronic wills.

In 2019, the Uniform Law Commission, a nonprofit organization that drafts model state legislation, passed the Uniform Electronic Wills Act (UEWA), a set of model laws for states that may want to enact legislation permitting the use of electronic wills. 

The UEWA maintains the traditional formalities of writing, signature, and attestation by witnesses but adapts them to some of the technological advances of the modern age. 

For example, a will written in some form of text and e-signed is valid. However, audio or video wills would not be valid unless transcribed before the testator signed them.

And states can enact a version that requires witnesses to be physically present or a version that allows for virtual witnessing. The UEWA has no requirements for the custodianship or storage of electronic wills. 

However, a state can enact its own requirements. Colorado, Utah, North Dakota, and Washington have adopted the UEWA in some form. And Massachusetts, the District of Columbia, and the US Virgin Islands have recently introduced the UEWA. They are sure to follow, allowing electronic wills.

Should I Use an Electronic Will In California? 

The short answer is – NO, at least not yet.

Currently, a valid will in California must be in writing and signed by the testator (Prob. Code Section 6110). 

In California, electronic documents and electronic signatures are valid for many transactions under the California Uniform Electronic Transactions Act.

But UETA does not apply to wills. 

And although California legislation for electronic will and signatures has been talked about and introduced, today a valid California will still requires a physical writing and original signature in wet form- not electronic.

Why Doesn’t California Have Electronic Wills Yet?

A will is one of the most important legal documents family members can write and sign. California, and other states, have many laws to protect their citizens from abuse in the areas of will, probate, and inheritance. Many of these states are moving carefully to fully protect their citizens before enacting electronic will legislation.

Elderly people are already susceptible to abuse of undue influence, duress, or coercion. Allowing electronic wills and electronic signatures can significantly increase that risk.

There is also the risk of increased litigation over whether a testator had the mental capacity to execute a will. With substantial estates, elderly testators, family conflicts, and potential undue influence, the possibility of abuse with an electronic will might be quite high.

How to Best Draft Your California Will Today.

Wills and trusts are powerful estate planning tools you can use to ensure your assets are distributed in the future according to your wishes.

Let us show you how to plan your will and trusts to protect your family. Although California trusts and estate law may be complicated, this is all we do. San Diego Legacy Law, PC is a qualified estate planning attorney firm in San Diego, California. We are familiar with all federal and California estate and trust laws. We know how to best help you achieve your estate planning goals, especially how to use trusts and wills to ensure your wishes.

Call today for a free consultation and learn your next best steps.